SENTENCING STATEMENTS

On sentencing, Lord Scott said:

"You have been found guilty of two charges.  Charge 3 involved the abduction and violent rape of the second complainer on 27 July 2023.  The violence involved repeatedly stabbing to her injury and permanent disfigurement.  The threats and violence you used with a knife were considerably in excess of levels of threat and violence we see daily in these courts in connection with charges of rape.  Charge 1 involved assault to injury of the first complainer on 7 March 2023.  That charge had marked similarities to charge 3, as it included a sexual element and involved a threat to stab her.  As the Justice Social Work Report (JSWR) points out, both of your victims were vulnerable.

There is a victim impact statement for the second complainer which explains the serious and lasting effects of what you did to her.  She carries daily reminders, both physical and psychological.  She speaks of the scars you caused acting as a daily reminder of the violent rape you carried out on her.  She goes nowhere on her own.  She suffers extreme anxiety.  She had to give up work.  Emotionally, she describes living in ‘a cage of fear’ for which she has started therapy.  She says she has never been so scared in her life and spoke out to try to ensure that no one else suffers at your hand as she did.

Even without having seen her impact statement, it is well known that the consequences of rape for victims or survivors can be significant and lifelong.

Before passing sentence, I asked for a justice social work report with a detailed risk assessment.  You have previously been sentenced to imprisonment and imprisonment is obviously necessary once again in view of the gravity of your continued offending, so I ordered the report with a view to considering whether it was appropriate or necessary to impose an extended sentence to address any risk of serious harm to the public.

The report provides detail of adverse childhood experiences and mental health issues.  You have had a related, long-standing problem with alcohol use.  I note that you have suffered with depression for which you now receive a prescription, although you have previously disengaged from support for your addiction issues.

I note that you maintained in interview with the author of the report that you are innocent of central aspects of both charges.  You have offered almost entirely self-serving accounts of both incidents which bear little relation to the important evidence, with the truth about what caused your bizarre and out of control behaviour perhaps now lost to you due to alcohol consumption.

You have failed to acknowledge your appalling behaviour in any meaningful way, especially as regards the second complainer.  You appear to have expressed some regret, largely about the first complainer, but you have undermined this with significant attempts at victim-blaming and minimisation of what you did to her and, in particular, what you did to the second complainer.  You have displayed no insight into how or why you behaved as you did.  You have shown no victim empathy.

The risk assessment states: ‘Whilst Mr McKenna’s risk of reoffending will be reduced whilst in custody, unless the above needs are addressed, alongside his alcohol and substance use and ongoing mental health difficulties, he is highly like to reoffend in a violent or sexual manner.’

You are 25 years old and were 23 at the time of both offences.  You have numerous previous convictions, including convictions for violence.  To date your longest sentence appears to be one of 20 months’ imprisonment, imposed on 24 October 2023 for various breaches of a community payback order which, in turn, had been imposed for an indictment matter involving 4 assaults to injury.

In fact, looking at your schedule of previous convictions, it appears that you committed the offence in charge 1 on the present indictment when subject to a 3 year CPO imposed on 18 October 2022.  You committed the violent rape in charge 3 when you must have been at liberty for only 23 days after receiving a backdated sentence of 6 months imprisonment for assault on 4 July 2023.  It seems likely that the backdating of that sentence meant that you would have been released on 4 July 2023.  If correct, that means that you are subject to having the unexpired portion of that sentence re-imposed today before I sentence you for the present indictment.  I make the total number of days I could re-impose to be 55 days.

Your criminal history is acknowledged to be an aggravating factor.

The question of serious risk of harm to the public is clear from the escalating pattern of serious sexual offending on the indictment, your previous convictions, repeated breaches of bail and other court orders and the risk assessment in the JSWR.

I have considered what has been said today on your behalf by Mr McSporran.  He has highlighted your age at the time of some of the offending and the adverse childhood experiences, significant mental health issues and other matters addressed more fully in the JSWR.

In view of the fact that this was an escalating course of serious sexual offending over a very short time when you were 23, and in the absence of any demonstrable link to immaturity as opposed to out of control alcohol abuse, I cannot give much weight to your age at the time.  In any event, as acknowledged by Mr McSporran, as you are now 25, the Young Persons Sentencing Guideline does not apply.

Mr McSporran emphasised that there is some evidence now of a willingness to engage with support to help you understand and avoid future violent behaviour.  It is very much in your interests as well as in the public interest that you do so.

Having regard to the whole circumstances of the case, only a custodial sentence is appropriate.  It is necessary to punish you and to seek to deter you and others from behaving in this way and in particular to protect the public from you.

Having reflected carefully on all of the circumstances, in particular the combination of serious charges, your previous convictions, the established and entrenched behaviour and the insights in the justice social work report, in my judgement the normal period of licence would not be enough to protect the public from serious harm from you.  Accordingly I consider that the custodial sentence in your case should be by way of an extended sentence.

Each of the charges is extremely serious in itself, carrying a maximum sentence of life imprisonment.

Both charges are aggravated due to you being subject to bail orders at the time from Edinburgh Sheriff Court, 2 such bail orders as regards charge 1, and 4 such orders as regards charge 3.  Indeed, you were on bail in relation to charge 1 when you committed the rape in charge 3.

In the circumstances, I impose the following sentences:

On both charges, taken together, I will sentence you to a cumulo sentence, that is a sentence which covers both charges which were part of a single course of serious sexual conduct on your part.  That course of serious sexual conduct involved considerable violence, in particular abducting and repeatedly stabbing the second complainer on the body with a knife, threatening to kill her and placing her in real fear for her life and raping her, all to her injury and permanent disfigurement.

Had I been sentencing the charges separately, I would have imposed a sentence of 3 years 6 months on charge 1 and 10 years on charge 3, the sentence on charge 1 being greater by 6 months due to the 2 bail aggravations and the sentence on charge 3 being greater by 12 months than it would have been due to the 4 bail aggravations.  Ordering these sentences to be served consecutively, resulting in a total custodial term of 13 years 6 months, would result in a sentence which is excessive.

Having regard to the principle of totality and the need to avoid the imposition of an excessive sentence, the custodial sentence I impose will be an extended sentence of 12 years 6 months.  The length of the custodial term of that extended sentence is 10 years 6 months with a 2 year extension period for the duration of which you will be under licence on conditions fixed by the Scottish Ministers.  If during this extension period you fail to comply with the conditions of your licence it may be revoked by the Scottish Ministers and you may be returned to custody for a further period.

The sentence would have dated from 28 July 2023 as that was when you were remanded for this case but, due to breaching a CPO, you have been sentenced to various periods of imprisonment which mean that some of your time in custody has not been exclusively in connection with the present matter.  That means that you are not entitled to a full backdating of your sentence.  I will therefore backdate the sentence to 14 September 2024.

In the circumstances, and despite it being entirely appropriate to have done so, I will not re-impose any of the unexpired portion of the previous sentence of 6 months imposed on you on 4 July 2023.

As a consequence of this sentence, you will be subject to notification requirements indefinitely.

In addition, I must consider whether to make a non‑harassment order in relation to your victim.  I will make such an order.

The conditions of that order are as follows:

That you must not approach, contact, communicate directly or indirectly with the second complainer or attempt to approach, contact or communicate with her.  The order will be for an indeterminate period and will commence today.”